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The Litigation Consulting Report

50 Characteristics of Top Trial Teams

Posted by Ken Lopez on Thu, Apr 21, 2016 @ 02:22 PM

trial team win litigation traits characteristicsby Ken Lopez
A2L Consulting

After the more than 20 years that we have spent in the litigation consulting business, we don't hear very many questions that we’ve never heard before. However, this week I did hear one, and the story is worth sharing because it goes to the heart of how a truly great litigator performs. The question I heard was, “What can we do better as a trial team on the next engagement?”

Consider how remarkable this is. Here was a litigator from a large law firm sincerely trying to improve the performance of his team and himself. I was deeply impressed, as this was the first time I've had someone ask that question after an engagement.

It's a very sensible question, of course. A2L's team has worked with thousands of litigation teams from the very best law firms in the world. I have watched many litigators perform near-magic in the courtroom, and I have seen teams fail miserably. There are patterns that lead to success and patterns that lead to failure.

In the spirit of the question that this litigator asked me, I started thinking about the traits of the world’s most effective trial teams. Here are 50 of them culled from my experience and that of my colleagues Dr. Laurie Kuslansky and Tony Klapper.

  1. Practice is by far the single most obvious indicator of a trial team's success. The great litigators draft their openings months or years in advance of trial and practice them dozens or hundreds of times. See, Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well

  2. Preparation. Great trial teams start preparing long before trial, and they don't ask the client’s permission to do so. Their attitude is, “If you work with a team like ours, it means you want to win and we know how to win and we're going to get that done, whatever it takes.” I think they are right. There are only a handful of law firms that I have observed that have this sense of preparation embedded in their litigation culture. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  3. Great litigation teams want their answers questioned. Great litigators are confident. They are so confident that they open themselves up to rigorous scrutiny in their approach to trial. Through a whole host of methods, they invite criticism, suggestions, fresh pairs of eyes, lay people’s opinions, experts’ opinions, and they use all of these voices to perform at their best. See, Accepting Litigation Consulting is the New Hurdle for Litigators

  4. They lead, but they can be led too. Great litigators avoid dominating all discussions. They intentionally let others lead them and be seen as leaders. Download the Leadership for Lawyers eBook

  5. They just look comfortable in front of a jury. Confidence equals persuasiviness and humans are born with an expert ability to detect it.  See, A Harvard Psychologist Writes About Presenting to Win

  6. They build narratives early. They know how important a narrative is to winning a case. They have also learned from experience that the earlier this is done, the better. A well-constructed narrative can inform everything from briefing to discovery to witness preparation. Download The Opening Statement Toolkit

  7. They understand the difference between a narrative and a theme. See, 14 Differences Between a Theme and a Story in Litigation

    storytelling for judge jury courtroom best method for trial persuasion and emotion
  8. They spend their time where they are most valuable and add the most value. How Valuable is Your Time vs. Litigation Support's Time?

  9. They begin developing their visual presentation months or years before trial. See, How Long Before Trial Should I Begin Preparing My Trial Graphics?

  10. They’re not afraid of technology in the courtroom or elsewhere. Skipping technology means losing credibility in most cases now. Jurors have come to expect it and no longer take kindly to simply being lectured to. See, Trial Presentation Too Slick? Here's Why You Can Stop Worrying

  11. They’re systematic in how they meet with their outside consultants. Great trial teams usually hold weekly calls or meetings and schedule the next event at the end of each meeting.

  12. They’re not frantic. There are so many reasons why one should not be frantic, and even when the facts are terrible, great lawyers work at a measured and even pace and don't go negative. See, 10 Signs the Pressure is Getting to You and What to Do About It

  13. They don't jockey for position with other lawyers and law firms. The worst and least effective trial teams that I have ever seen play politics to the detriment of the client in the run up to trial. See, 5 Tips for Working Well As a Joint Defense Team

  14. They exhibit a distinct lack of arrogance. I think some people confuse arrogance with ability. The best trial teams I have observed display tons of confidence, show mastery of the subject matter, demonstrate massive respect for one another and never allow arrogance to enter the picture. See, In-House Counsel's Role In Keeping Litigator Ego In Check

  15. They probably subscribe to our blog. Alright, not everyone subscribes to this blog, but 8,000 people do. Litigators who demonstrate that they hope to grow their own skill set are typical subscribers. See, 10 Surprising Facts About Litigation Consulting Report Blog Readers

    Complimentary Subscription to This Blog

  16. They realize there are too many parts in big-ticket litigation for the first chair to handle all of them alone. They know how to divide the work among attorneys, paralegals, experts, and others. The only way to build a simple case is to start with a complicated one and break it down. Truly complex cases require lots of team effort to achieve this result. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product

  17. They require their experts to work with communications and visual design consultants. Perhaps 1 in 500 experts is an expert in presenting information in a jury-friendly way, but most believe that they are. 7 Smart Ways for Expert Witnesses to Give Better Testimony

  18. They don't lose it; they keep their cool. There are plenty of stressors in the pre-trial environment. People not used to doing this kind of work would find it hard to maintain a positive attitude, but it is so critical to do so. See, 5 Signs of a Dysfunctional Trial Team (and What to Do About It)

  19. They conduct post-hearing, post-conference, and post-trial debriefings. Truly great trial teams do this, and all bad trial teams simply blame a bad judge, bad facts, and/or a bad jury. See, 9 Questions to Ask in Your Litigation Postmortem or Debrief

  20. They contemplate their thematic story right from the start and incorporate that into discovery. We're working with a number of clients now who are making sure a narrative is developed early in a case, not just on the ease of trial. This is a best-practice for highly effective trial teams. See, Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

  21. They tell you their strengths and weaknesses. When we meet with a trial team for the first time, they usually present to us as if we were potential jurors. That is, they advocate. Good trial teams do that, but then great trial teams say, "here's what our opponents will say and here's where we are vulnerable."

  22. They don’t answer their own questions, but let other people do that. Often, these answers are found in a mock trial setting. As we frequently advocate, let the data speak, don't guess or just use your gut instinct. See, 10 Things Every Mock Jury Ever Has Said

  23. Before dismissing new ideas, they consider how to apply them, no matter how new. See, How Creative Collaboration Can Help a Litigation Team

  24. They repeat back recommendations to make sure they understand them. This mirroring technique is used by many highly effective litigators and great listeners in all fields.

  25. They send drafts of their work with enough lead time for others to provide comments. Time management in litigation is a skill that must be developed and is a given with great trial teams. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  26. They communicate in an orderly, consistent manner so that the left and right hands know what the other is doing. 

  27. If they aren’t good organizers, they task someone who is to assure continuity and avoid panic. Download the Leadership for Lawyers eBook

  28. They don’t assume anything and seek to verify with facts, including mock testing that shows which themes are winners and which juror types are worst. See, 11 Problems with Mock Trials and How to Avoid Them

    mock jury webinar a2l kuslansky

  29. They don’t answer challenges by simply stating how long they’ve done this or where they went to school. See, 6 Studies That Support Litigation Graphics in Courtroom Presentations

  30. They lead, but don’t micromanage. We recently wrote about how some trial teams will agonize over fonts, colors, and PowerPoint templates while ignoring bad facts in their case during trial preparation. See, 3 Trial Preparation Red Flags That Suggest a Loss is Imminent

  31. They are respectful to junior staff and outside consultants. See, 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck

  32. They understand that their success is a team effort and approach it that way. See, When a Good Trial Team Goes Bad: The Psychology of Team Anxiety

  33. They give credit where credit is due, sincerely (not by patronizing).

  34. They lead by example. Download the Leadership for Lawyers eBook

  35. They pay their bills on time or early. I'm pretty sure most litigators don't understand how important timely payment is and how it contributes to winning cases. See, 10 Ways Timely Payment Helps You Save Money On Litigation Consulting

  36. They don't sugarcoat the possible effectiveness of the other side's narrative and thematic points and fall too quickly in love with their own narrative and themes. See, 12 Astute Tips for Meaningful Mock Trials

  37. Notwithstanding a keen awareness of what the other side will say, they don't simply respond to the other side; they build their own affirmative narrative. See, $300 Million of Litigation Consulting and Storytelling Validation opening statements toolkit ebook download a2l
  38. They pressure test throughout the course of their pre-trial development and during the course of trial itself by continuously empowering the entire litigation and trial teams to provide their own input. They eschew groupthink. See, How Creative Collaboration Can Help a Litigation Team

  39. All attorneys on the team have meaningful roles that sync with their individual strengths.

  40. They don't wait until the last minute to prepare fact and expert witnesses and instead dedicate sufficient resources to ensure those witnesses are prepared. See, Witness Preparation: Hit or Myth?

  41. Witness preparation includes, of course, careful development of an effective visual presentation that is rehearsed but doesn't sound rehearsed. See, The Top 14 Testimony Tips for Litigators and Expert Witnesses

  42. Effective litigation teams spend as much time preparing their witnesses for robust cross-examinations as they do for direct examinations. See, 
    Witness Preparation: The Most Important Part

  43. They look for opportunities to score significant points on redirect, a redirect that is thought through well in advance of trial and not simply reactive to cross.

  44. They seek candid feedback, not false praise, during trial.

  45. They get some sleep. One of my favorite, now retired, trial lawyers used to say that he never slept better than when we was at trial. He always knew he was fully prepared.

  46. They don't relegate preparation of important witnesses to junior lawyers who lack actual experience. See, Witness Preparation: Hit or Myth?

  47. They don't dismiss the level of intensive prep needed “just for deposition,” waiting for trial.  Most cases settle, and discovery can make or break a case. My favorite lawyers are just as "on" at a depo as they are at trial. See, 6 Tips for Effectively Using Video Depositions at Trial

  48. They think about details like tie color, suit color, and body language, and they work to improve their delivery at every event they participate in. See, Litigation Graphics, Psychology and Color Meaning

  49. They are grateful that they get to do the kind of work that they do. I watched a top trial lawyer and friend be interviewed recently. His attitude was one of sincere gratitude about being a litigator. That sincerity comes through in everything that he does, and it is part of the reason he is so successful in front of juries. It's something that is almost impossible to fake.

  50. Finally, they ask their litigation consultants what can they do better. So far, as mentioned in the introduction to this article, it has happened just this once. However, I have a feeling we'll get asked this question more and more. I hope this article provides a useful framework for these types of discussions.

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Jury Consulting, Courtroom Presentations, Mock Trial, Trial Consulting, Demonstrative Evidence, Litigation Management, Litigation Support, Juries, Jury Consultants, Trial Preparation, Storytelling, Management, Practice, Expert Witness, Leadership, Judges, Opening, Depositions, Witness Preparation, Persuasion

Repelling the Reptile Trial Strategy as Defense Counsel - Part 5 - 12 Ways to Kill the Reptile

Posted by Ken Lopez on Tue, Aug 4, 2015 @ 01:40 PM


reptile-trial-strategy-defense-win-beat-overcome-jury-consultantsby Ken Lopez
A2L Consulting

This is the fifth and final installment in a series of articles focused on how defense counsel can overcome the increasingly popular Reptile trial strategy. In parts one through four, I offered an introduction to the strategy, I shared ten ways to recognize when the strategy is being used against you, I explained why the strategy does not actually work in the way that its authors describe, and I explained that despite the bad science, the Reptile trial strategy still works.

In this post, I summarize how to overcome the strategy in both the pretrial and trial phases of a case. I rely heavily on the work of Jill Bechtold of Marks Gray and Steve Quattlebaum of Quattlebaum, Grooms & Tull. They were my co-presenters at a recent defense attorney-focused conference devoted to repelling the Reptile strategy.

One theme that clearly emerges from the 12 points below is that being a good defense lawyer is more important than ever. No longer is it enough simply to outlast your opponent. No longer is it enough to come up with a great theme and narrative just before trial. Because the Reptile strategy often begins with the complaint, a defense against it must start shortly thereafter -- or you will pay the price later.

  1. Spot the Reptile: It can appear as late as closing arguments, but more often than not, plaintiffs counsel will introduce the key themes as early as the complaint. See, 10 Ways to Spot the Reptile in Action.

  2. Read the Book: I hate to say this, but you probably should read it. It is Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan.

  3. Spot your Opponent on the Reptile Hall of Famehttp://www.reptilekeenanball.com/reptile-allstars/ Plaintiffs counsel with a record of using the Reptile strategy are listed here. Is one your opponent?

  4. Storytelling Will Prevail: As you go through your case intake process, begin looking for the elements and start developing your own narrative. If you build the right narrative, you stand a higher chance of winning your case at trial. See, The Litigator's Guide to Storytelling for Persuasion 

  5. Understand Your Opponent's Narrative: Plaintiffs lawyers are often successful because they focus on narrative from the very beginning. You need to uncover that narrative and be ready to replace it with your own.

  6. Articulate Your Narrative from Day One. The sooner you build your own narrative, the better off you will be. Developing a narrative long before trial allows for testing of that narrative and it allows for it to be used throughout the discovery process. Keeping it a secret until trial is not a great tactic and is often an excuse for procrastination. See 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do

  7. Prepare Your Witnesses: They will be badgered. Teach them how not to give in and to think of each answer they give as a potential video clip. Give them standard phrases that will play well – such as: I don't understand, it depends, or I don't have enough information. Use witness preparation techniques and consider outsourcing witness preparation to firms that understand the Reptile theory. See Witness Preparation: Hit or Myth?

  8. Use Motions in Limine to keep out evidence that is irrelevant and inflammatory. Also, use pre-trial motions to introduce and undermine the Reptile strategy.

  9. Object at Depositions: Use objections based on form, relevance, lack of foundation, mischaracterization of law, or seeking legal conclusions. Don't rely on standing objections as this will not be effective in fending off damaging testimony, nor do they help minimize the impact of video testimony.

  10. Help your Client Understand the Reptile Trial Strategy: Your client should understand the nature of the actual duties that are owed to the plaintiff and should be able to distinguish between those and the made-up community standards that are characteristic of the Reptile trial strategy. See The Top 14 Testimony Tips for Litigators and Expert Witnesses

  11. Test Plaintiffs’ Case in a Mock Trial, Using Reptile Techniques. See 12 Astute Tips for Meaningful Mock Trials

  12. Watch for Golden Rule Violations at Trial. The Reptile strategy gets close to crossing this line, and a less sophisticated plaintiffs lawyer may very well cross it --potentially resulting in a new trial.

Using these and other techniques, I am confident that a well-prepared defense attorney will be able to defeat the Reptile theory.

Parts 1, 2, 3, 4, & 5.

Other articles and resources related to Reptile trial strategy, jury persuasion and jury consulting from A2L Consulting:

pretrial trial graphics motions briefs hearings




Tags: Jury Consulting, Mock Trial, Trial Consulting, Jury Consultants, Storytelling, Expert Witness, Depositions, Witness Preparation, Reptile Trial Strategy

Repelling the Reptile Trial Strategy as Defense Counsel - Part 4 - 7 Reasons the Tactic Still Works

Posted by Ken Lopez on Mon, Jul 13, 2015 @ 04:14 PM


repitile-litigation-tactics-strategyby Ken Lopez
A2L Consulting

In my previous three posts concerning the “Reptile” trial strategy, I provided an introduction to the strategy, I discussed how to spot it, and I discussed why the science that its authors claim supports the strategy is just plain wrong.

As I have mentioned in previous articles, this trial strategy has been largely absent from the types of cases that we work on at A2L. However, with high-stakes pattern litigation on the rise, and with the increase in sophistication on the plaintiffs side in big-ticket litigation, the “Reptile” is something that medium and large law firm defense firms must be able to spot and to cope with.

In this article, I will focus on the critical fact that, despite the bad science that its authors employ, the Reptile trial strategy still works. In other words, the “Reptile” advocates are tapping into authentic ways of persuading jurors. There are at least seven reasons for that.

  1. The “Reptile” advocates suggest using a strong theme that is constantly reinforced throughout the case from complaint to closing. That's just good lawyering, and a majority of lawyers still don't do this. See 14 Differences Between a Theme and a Story in Litigation.

  2. Similarly, they encourage focusing on a consistent strategy from the very beginning of the case. Few defense counsel do this throughout a case, and again, following this practice is just good lawyering. See Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy.

  3. They encourage the use of narrative as a persuasion strategy. We've written about that many times, and they are right to encourage it, because it works very effectively. Our proposed narratives are based on real psychological science and theirs are not, but the use of narrative is a very good idea. See $300 Million of Litigation Consulting and Storytelling Validation.

  4. Plaintiffs are going to score some hits in video depositions because the strategy is just so relentless. The authors advocate a fanatical pursuit of admissions from the defendants. If one doesn’t know how to stop the badgering, it is easy to slip in a deposition, and it sometimes only takes one slip to win a case. See The Top 14 Testimony Tips for Litigators and Expert Witnesses.

  5. By redirecting the focus away from the plaintiff and on the defendants and the injury they might have caused, plaintiffs take the focus off the plaintiffs regardless of their contributory behavior. Again, this can be very effective. See Storytelling Proven to be Scientifically More Persuasive.

  6. Emotional appeals work. As a rule, whether you are buying a new suit, watching your kids tour a college campus or sitting in a jury box, people buy on emotion and justify on fact. The reptile trial strategy is a good method of making an emotional appeal. See Are You Smarter Than a Soap Opera Writer?

  7. Finally, the book reads like a manual -- and even a bad lawyer can follow a manual. Over and over again, good tactics are suggested, wrapped up in a palatable vocabulary. The strategy works because it's easy to follow, easy to remember and easy to implement. See The Top 5 Qualities of a Good Lawyer.

In my next post, I will discuss how to overcome the strategy as a defense lawyer. If you'd like to be notified of subsequent articles, please click here.

Parts 1, 2, 3, 4, & 5.

Other articles and resources related to trial strategy, jury persuasion and jury consulting from A2L Consulting:

pretrial trial graphics motions briefs hearings

Tags: Jury Consulting, Juries, Trial Preparation, Storytelling, Depositions, Reptile Trial Strategy

5 Ways to Maximize Persuasion During Opening Statements - Part 3

Posted by Ryan Flax on Mon, Apr 20, 2015 @ 03:15 PM


burst-bubble-wind-sails-opening-statementby Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

In our two previous posts, we discussed two important roles that an opening statement can play: making you and your client appealing to the jurors, and telling a convincing story. Here are two other key functions for an opening statement.

Showing How the Facts Fit the Law

You cannot argue in an opening statement. That is objectionable. But you can accurately tell jurors what you need and intend to prove to win, thus giving the jurors in effect a list that they can check off during the trial. Don’t tell the jury what the law is; that’s for the judge to do. Instead, tell them what you’re going to prove and why it’s important. You’ll want to combine this with your storytelling. Most cases aren’t as complicated as lawyers think they are, and if jurors are to do their job, they simply can’t be too complicated. Boil down the things you need to prove into a simple list. Tell the jury that you’re going to show them all these things.

For example, in a basic breach of contract case the question is: Shouldn’t a deal be honored? To win the case, you need to first show that there was a valid contract, that it was reasonable, and that there was performance by your client.

Once you’ve established the framework of proof, give your jurors a taste of the evidence that will be presented at trial and explain that it’s enough to win without any more evidence (but of course there will be more). For example, there is already deposition testimony from the defendant that there was an agreement, a contract. The defendant has also already conceded in testimony that the amount in the contract was reasonable. Finally, there can be no doubt that our client performed under the contract. Now, if we can just get a stipulation from the defendant that he hasn’t paid our client, we’re there.

Now that the jury knows what to expect at trial, they’re primed and they have a working outline for the trial.

Deflating The Opponent’s Balloons

Every case has a weakness, even yours. How do you handle weaknesses in the opening statement? Beat your opponent to the punch — identify your opposition’s strongest points and explain why they don’t matter. Bringing out weak points in your case in as positive a way as possible takes the sting out of the issues, makes you appear honest, and lessens the negative impact of your opponent pointing them out.1

If you go first and identify for the jury what opposing counsel will say in their opening and discount it, you’re already winning. Lawyers who ignore their weaknesses lose credibility. Jurors will not believe a lawyer who is perceived to be hiding important facts.

The key to handling weaknesses is to make them part of the story and turn them around. Admit them as if they were “no big thing” or if they seem to be a big deal, explain why they’re not really that big. Reason and logic rule: You’ll need a reasonable and convincing but terse explanation for why your client waited three years to sue or why a couple of beers before heading home didn’t matter.

Deflating balloons doesn’t mean telling the jury about every single piece of conflicting evidence or argument the opposition may use. Deal with major problems that could really matter if left to your opponent to introduce.

Other A2L Consulting articles and resources for opening statements, trial presentation and litigation consulting support generally:

complex civil litigation ebook free


[1] J. Alexander Tanford, The Trial Process: Law, Tactics and Ethics 3d, at 169 (2002).

Tags: Litigation Consulting, Juries, Storytelling, Opening, Depositions, Closing Argument

The CEO in Litigation: Problems, Solutions and Witness Preparation

Posted by Laurie Kuslansky on Tue, Mar 24, 2015 @ 04:41 PM


ceo-deposition-tips-testimony-courtby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Research & Consulting
A2L Consulting

Beware: When a CEO takes the stand, he or she could prove to be an unexpected liability. Dr. Laurie R. Kuslansky, Trial Consultant, explains how to avoid this unfortunate — yet foreseeable situation.

The very qualities that make the CEO successful in business—the ability to take charge, to think in terms of the “big picture,” to avoid minutiae, and perhaps the possession of ample self-importance and confidence—may collectively manifest as a poor witness in the courtroom, which is not filled with "yes-men." These behaviors can handicap counsel and may prevent judges and juries from perceiving the executive favorably. Trial team members may overlook a CEO’s faults due to familiarity, resignation, because they wish to maintain a comfortable relationship, or because other facets of the case distract them. However, it is risky to ignore the negative impact the CEO’s behavior may have on an uninitiated audience (i.e., a judge and jurors) that has no incentive to tolerate it.

Pitfalls of the CEO as Client

The CEO is naturally hesitant to relinquish control. When faced with a threat, this leader seeks control. An excessively controlling executive is certainly not the person who should run the legal show, but often tries to do so. The trial team may not feel trusted and may be forced to “work around” the CEO to get its job done. It is essential that one member of the trial team—ideally, the best qualified—be designated to direct the effort.

When a CEO defers authority, it may be to someone who lacks the skills necessary to succeed in trial (e.g., a non-litigator who performs legal research, writes briefs, or who focuses on motions or post-trial appeals or to inside counsel who is paid to agree with "the boss"). In this situation, friction will undoubtedly arise between the non-litigator’s provision of detailed information and the litigator’s streamlined plan or between the politically driven in-house counsel and strategically thinking trial counsel. The CEO’s choice of one plan over the other may be a show of control, but may work against the strength of the team—and ultimately against the CEO.

Pitfalls of the CEO as Witness

The CEO is among the most visible of corporate witnesses. Jurors view the chief executive as uniquely qualified to answer for his or her company, both as the endorser/enforcer of corporate policy and as the parental role model for the corporate culture. Consequently, this leader is expected to be knowledgeable, powerful, and accountable. However, jurors often view the CEO cynically (i.e., as out of touch with the average person, as poised to advance the company’s agenda, and as being motivated by greed and a desire to protect him or herself and assets). We've heard CEOs make comments that set them apart from the jury, such as "It wasn't a lot of money . . . only maybe two or three million dollars."

In contrast, the juror typically has high regard for the judge and expects trial participants to be polite and deferential. The executive who seeks control—or who seems too casual—offends the jurors’ sense of who should be in charge and how one must conduct oneself in court. If the CEO resists direction from the Court, he or she is seen as difficult, evasive, or unlikable (and thus not credible). Worse, it sends the message that they are above the rules and are willing to break them.

Ironically, then, attempts by a CEO to advance an agenda or to show strength accomplish quite the opposite. Behaviors that succeed in the corporate environment only serve to antagonize jurors. Jurors do not live in the CEO’s world; jurors tend to be average wage earners with limited or no power in the workplace. Though they may admire the corporate leader who has an unusually positive story (e.g., a CEO who pulled himself or herself up by their bootstraps), jurors are inclined to feel distant from—even resentful of—a powerful individual, particularly one who displays an air of superiority and collects hefty salaries and bonuses which are seen as in the stratosphere and unwarranted. The jury trial provides a rare opportunity for jurors to turn the tables. Hence, the CEO who testifies as if he or she is holding court (rather than deferring to the Court) may provoke a backlash by confirming juror suspicions of corporate arrogance.

On direct examination, the self-assurance displayed by a CEO can make a cordial exchange with the questioner reminiscent of a well-rehearsed infomercial. This effect will likely be more pronounced than with other witnesses, since the executive (who is, after all, the client) will elicit only polite and respectful questioning. On cross-examination, however, the same executive often appears unprepared, uncooperative, impolite, manipulative, arrogant, and/or evasive. A CEO’s power struggle with a cross-examining attorney reveals the leader who was so pleasant and self-assured on direct examination as someone who can also be highly unlikable and inappropriately controlling.

Why does this happen? Negative Tendencies of the CEO

  • Believes that others see things from his or her perspective when most are simply paid to do so

  • Patronizes others or blames their limitations when others are not persuaded to see things as the CEO does

  • Finds it difficult to speak at the level of the jury, yet expects to be understood

  • Refuses to yield on the stand, opting for one-upmanship in a misguided show of strength rather than picking his or her battles

  • Bullies opponents: It is more important to the CEO to be right than to be likable or cooperative

  • Insists on always having an answer

  • Is prepared to give orders, but not to take them; and is willing to ask questions, but not to be the one “on the spot”

  • Refuses to spare his or her opinions

  • Fails to speak diplomatically

  • Appears to be a “suit” (i.e., appearance, body language, behavior, lifestyle, etc. serve to identify the executive as a privileged power broker).

  • Doesn't suffer fools well, so shows contempt for ill-prepared or disorganized questioners
  • Note: If you show this list to a CEO, he or she will deny it describes them!

Pitfalls of the CEO on Videotape: Seeing Is Believing

Video depositions are an additional CEO hazard. Opposing counsel may edit video testimony to create damaging sequences for replay to a jury; these sequences commonly exaggerate unattractive qualities of the executive that go unnoticed when only the written record is used. Such qualities include appearance, demeanor, facial expression, body language, mannerism, delays in responses, tone of voice, diction, accent, eye contact, gaze, posture, personality, and attitude . . . as well as attire, haircut, tan, jewelry and accessories.

Video is especially damaging when the judge and jury do not see what they expect. For example, the CEO’s attire may send the wrong message; an inappropriate background in the video can do the same.

Inconsistent behavior or appearance that would likely go unnoticed in written transcripts can be quite apparent on video and seeing is believing . . . or not.

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The executive’s energy level or appearance may improve from one taping to the next, or (more likely) may decline due to fatigue over time.

Poor positioning of the witness may also create a negative impression. If the CEO is sandwiched between deposing and defending attorneys, the resulting “pingpong” effect of his or her turning head is both a distraction and a red flag. Any fidgeting that creates a visible pattern (remember Oliver North at the Congressional hearings?) has a similar effect.

Likewise, the CEO who looks to the attorney after hearing a question reveals uncertainty and the need to defer to counsel.

In traditional depositions, attorneys tend to focus on substance more than form; CEOs tend to answer questions by saying as little as possible. This protects against later attacks on the executive’s credibility (given the developments of discovery and the opportunity to review additional materials, answers in court may vary from those given in deposition). On video, however, such reticence presents as unresponsive, detached, uncooperative, and even evasive.

The CEO who is tongue-tied in a video deposition but charismatic and forthcoming in court will witness the erosion of his or her credibility.

Conversely, the CEO who plays the “charmer” in a video deposition by volunteering information, war stories, etc. likewise forfeits credibility if he or she “gets religion” and clams up on the stand at trial.

Keep in mind that it is easier to lie with words than with behavior. Nonverbal messages may betray the CEO’s true mindset. Jurors know instinctively that body language can be revelatory. From their perspective, the CEO’s physical behavior is more significant than his or her words.

How to Avoid Video Pitfalls

Some solutions to these concerns are obvious: Pay close attention to appearance. In deposition, position the witness to allow a clear line of sight to both parties and the camera. Strive for consistent demeanor over time.

However, success requires time, practice and expertise. To improve the video performance of your executive witness, the following are essential:

  • Blunt reality checks: Offer honest feedback regarding the added risks of video deposition.

  • Pay attention to details: Form is as important as substance and more so for credibility.

  • Clear the table of distractions.

  • Warn the CEO to use his or her best manners: No interrupting, no bad attitude, and

    avoid controlling behavior.

  • Remind the CEO to respond only after the question has been fully asked and understood.

  • Avoid ploys to stall for time (such as asking a questioner to rephrase or repeat a question when unnecessary).

  • Vary the length and the language of responses; use this variety to attract attention to helpful testimony and to avoid sounding trapped or as if “taking the Fifth.”

  • Model and practice matter-of-fact answers to difficult questions.

  • Teach the witness to respond in contrasting style to the examining attorney. If the adversary becomes loud, fast, or aggressive, the CEO should accordingly strive to be quiet, deliberate, or polite.

  • When members of the trial team pass documents or approach the witness or exhibits, they must take care to remain off camera.

  • Educate the witness: Ask the CEO to observe as someone else plays the role of the CEO under questioning, and then evaluate the CEO to ascertain his or her level of self- awareness.

  • Employ behavior modification: Arrange for the executive to evaluate his or her level of self-awareness by reviewing details in videotaped practice sessions.

  • To identify negative body language, review the video without sound first.

  • Because the trial team’s relationship with the CEO makes it difficult to view the CEO as others will, arrange for an unknown attorney to conduct practice sessions and then to provide honest feedback.

  • Identify behavior that needs work, then change one behavior at a time. Practice, videotape, then review and evaluate the tape. Encourage positive change, and then move on to change another area.

  • Prepare visual exhibits (of adequate size to review on camera) to make strong points, organize the CEO’s testimony, and strategically distract viewers from the witness.

Why Does a CEO Act This Way?

Though it seems illogical for a CEO to behave counterproductively, there are reasons for such behavior. The chief executive is driven to succeed. He or she has every reason to believe that tactics rewarded by success in the past will continue to yield success. When in unfamiliar territory (e.g., the legal process), the CEO will misapply familiar behavior (borrowed from the business world) until he or she understands that doing so risks failure.

The CEO will resist the surrender of winning familiar formulas.

Unless he or she has learned through experience or atypically defers to counselors, a chief executive does not respond well when told to change or to back off.

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Once your CEO becomes aware of the dilemma and is receptive to new ways, keep in mind that old habits die hard. The CEO will be a poor witness if he or she views a lawsuit as an interruption of higher priorities. Jurors have a keen perception of such elitism. If the CEO perceives the necessary investment of time, energy, and money as unjustified or feels above the need to explain him or herself, the result will be a dismissive or contemptuous attitude, both on the stand and in the steps leading there, but he or she won't have the last say for a change — the judge or jury will.

Corporate politics may undermine a chief executive’s testimony. For example, imagine that the CEO was at odds with other executives regarding a policy change.
Cross-examiners would be thrilled to reveal this rift. They would take the opportunity to exploit tension between the CEO and dissenting witnesses. A CEO would resent the need to simultaneously defend and reconcile such differences of opinion. The trial team must not overlook the fact that stress hampers the CEO’s decision-making ability and performance. Expectations of the CEO run very high. As the corporate leader, this witness has far more to deal with than litigation. The implications of a given case extend beyond the courtroom, and the chief executive is highly exposed. He or she is accountable to employees, business plans, banks, investors, trustees, board members, shareholders (if the company is publicly traded), and the public. Each of these factors contributes to the CEO’s unique perspective of – and stress from – a lawsuit.

When a CEO is the client in a criminal case, the problem of stress is magnified. The CEO is likely to receive little outside support as former allies (including friends and family) distance themselves, adding to the CEO’s anxiety. Anxiety is the saboteur of CEO witness performance. As anxiety increases, a CEO typically becomes less able to accept advice. His or her desire to take control increases in direct proportion to the perceived threat (e.g., if the CEO’s liberty is at stake). Tension may also develop between a CEO’s advisors and the trial team. The leader of a corporation is commonly surrounded by “yes men” who tell the CEO what he or she wants to hear. In a criminal trial, the CEO may present as unlikable and not credible and yet receive positive feedback from insiders who misleadingly assure him or her that all is well. Many rule by fear, so stressful times are the least likely to elicit criticism, even if accurate.

In contrast, the trial team will wish to provide more balanced or even worst-case scenarios. However, when trial team members give realistic critical feedback, they may find the CEO unwilling to listen. Thus, attorneys hesitate to give frank advice because they fear being shot as the bearer of bad news, or because they naively wish to protect their client by shielding him or her from negative feedback (to no one’s long-term advantage). As a last resort, the trial team will sometimes forego calling the CEO as a witness. This can be a death knell – especially in criminal cases – because juries want to hear from the CEO. The trial team then faces a no-win choice: Either put a CEO on the stand who is a bad witness, or avoid calling the CEO altogether.

Too Much of a Good Thing Is Not Always Wonderful

The CEO witness can fail by over-compliance or under-compliance. Training any witness to act against their nature can backfire; an overly prepared executive may not present as genuine. For example, a stern CEO who smiles at the jury when speaking can look like a grinning fool or a windup doll, thus losing instead of gaining essential credibility.

A chief executive must behave naturally, must uphold the jury’s positive expectations, and must not reinforce negative stereotypes. The CEO’s lead attorney is charged with maintaining a balance between forthrightness, control, and remaining sensitive to the CEO’s concerns and anxieties.

How to Raise the CEO’s Awareness:

  • Be certain you understand each other. Review mutual goals and your plan to reach them. Take nothing for granted.

  • Control damage. Show the CEO (e.g., by videotaping cross-examination practice sessions) how and why misguided strategies, aggression, and over involvement will boomerang.

  • Consider the reaction of the audience. Orient the CEO to the perspective of the judge and jurors. Use blunt terms to describe how the CEO is likely to be perceived.

  • Get a reality check from the horse’s mouth. When possible, mock-try the CEO. Test recorded direct and cross examinations before surrogate jurors to allow the CEO to measure his or her expectations against real feedback.

storytelling for judge jury courtroom best method for trial persuasion and emotion
The attorney’s task includes showing that the CEO is a “people person,” not just someone who gives orders from on high. Demonstrate the CEO’s knowledge and understanding of the roles and contributions of others in the company. Even if the witness is reluctant to learn the details, it is important to encourage him or her to become familiar with the experience and input of lower level employees. This is essential for the CEO who must testify as both a fact witness and a corporate witness; keep in mind that his or her recall and performance will benefit to the degree that anxiety can be reduced. The CEO should also be encouraged to consider how outsiders view him or her as a person and as a decision maker, and to offer background and context to explain his or her actions.

What the Attorney Must Teach the CEO Witness:

  • Capitalize on your strongest asset: Charisma. Opportunities to employ charisma may be lost if ego gets in the way (appeal to the CEO’s ego with winning strategies).

  • Choose your battles carefully while under questioning.

  • Take control on the stand through both your behavior and your speech.

  • Practice the questions you dread most through role-play (the CEO plays the cross-examiner and the attorney plays the witness). By asking the most difficult questions, you can learn model responses that overcome anxiety.

  • Work with others on the case to avoid the “Hero or Zero” witness syndrome. No one makes or breaks a case without help from others.

  • Use analogies the judge and jurors appreciate but that opponents cannot turn against you.

  • Use a mock jury to pretest these analogies.

  • Pare down all excess in dress, accessories, and mannerisms.

  • Drive to court in your mother’s car, or use public transportation.

Spend time with the CEO to review what he or she can and cannot concede. Supply areas of concession and appropriate, matter-of-fact ways to make concessions. Thus armed, the CEO will have something to give without losing ground and a guide to assist his or her choice of battles.

It’s a Lousy Job, but Someone’s Gotta Do It

As difficult as it may be, it is imperative to tell the emperor that he has no clothes: Someone must inform the CEO witness when he or she has presentation problems. If you are ultimately to be successful in your litigation, this witness must understand the significance of the situation and must be enlisted to help you improve it. Though it may be tempting to avoid conflict with the CEO client, doing so would be a disservice. Embarrassing results would certainly hurt the relationship, and unwanted results can end it. The earlier these problems are addressed, the better.

This article originally appeared as the Cover Story of International Commercial Litigation Magazine.

Other articles about witness preparation, jury consulting and courtroom testimony from A2L Consulting:

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Tags: Trial Consultants, Mock Trial, Litigation Consulting, Juries, Jury Consultants, Expert Witness, Depositions, Witness Preparation

3 Articles Discussing What Jurors Really Think About You

Posted by Ken Lopez on Wed, Jul 16, 2014 @ 09:25 AM


what do jurors think about lawyersby Ken Lopez
A2L Consulting

I enjoy reading any article about juror feedback. However, finding such articles is pretty tough. Few authors have the time, budget or access to jurors to ask them what they think about the experience of trial and the lawyers involved.

As a litigation consultant, I have had the privilege of seeing many trials and mock trials over the past 20 years. In that time, I've observed certain characteristics that all mock juries possess. My colleague, Dr. Laurie Kuslansky, wrote a great article about commonalities among mock juries that is one of the best I have seen on the subject. Still, while we litigation consultants spend quite a bit of time with juries and mock juries, there is real value in hearing what others, such as judges and law professors have observed through study.

Below are three articles that offer meaningful insight into the minds of jurors. I think by reviewing these articles, any litigator will be better prepared for trial.

1. What Jurors Think About Attorneys: What if a judge collected data over a ten-year period from more than 500 jurors and compiled it in a meaningful way? Well, that is exactly what one Minnesota state court judge did, and the recently published results are fascinating.

Eighty-nine percent of this judge's jury trials were criminal. His goal in surveying his juries was to collect data about many aspects of the trial from the court building to the evidence displayed to the performance of counsel. The jurors were mostly from a rural part of the state.

You should read Judge Hoolihan's article. I found some of the interesting takeaways to be these:

  • Jurors tended to rate attorneys highest when they represented the prevailing party. From the data, I can't tell whether jurors tended to side with the attorneys that they liked best, or whether the high ratings were the result of a form of the Ben Franklin effect where jurors tended to like the people they sided with more, simply because they sided with them.
  • Jurors rated defense lawyers lower than plaintiff-side lawyers who were mostly prosecutors. Judge Hoolihan wonders whether this results from an anti-defense lawyer bias generated by Hollywood, but I would ask whether this is because the government generally has an advantage. I suspect it is mostly the latter.
  • Jurors tended to rate defense attorneys much lower when they lost a case compared to the ratings of plaintiff side attorneys when they lost.
  • Jurors wanted to see and hear more evidence.

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2. Trial Presentation Too Slick? Here's Why You Can Stop Worrying: I wrote this article in 2011, and the real focus of the article is on a trial consultant who smartly took the time to interview a jury post-trial and record it. The results are fascinating, especially when you consider that this was a rural Arkansas jury. The jurors shared that:

  • Jurors expect the use of technology.

  • Jurors expect the use of PowerPoint.
  • Video depositions synced with the transcript were very helpful.

3. What Jurors Think About Trials [PDF]: In this book chapter from a law professor at Northwestern University Law School, the surprisingly limited scientific study of jury trials is well-summarized. Here are some interesting findings:

  • About 40 percent of all jurors initially want to get out of jury duty. When they were done with jury service though, more than 60 percent thought highly of jury service.

  •  40 percent of jurors thought jury selection lasted too long.

  • Jurors "are active information processors who bring expectations and preconceptions with them to the jury box, filling in missing blanks and using their prior knowledge about the world to draw inferences from the evidence they receive at trial."

  • 51 percent of jurors wonder why certain people mentioned at trial did not testify. 27 percent of jurors held that very lack of testimony against the side that did not call the witness.

  • 83 percent of jurors in civil trials said that an exhibit helped them reach a decision. 
  • 30 percent of civil trial jurors say that the verdict ultimately reached was not the majority viewpoint when deliberations started.
I find many of these statistics fascinating and helpful, and I hope you do too. If you are aware of similar articles that discuss the scientific study of jurors, I would encourage you to post them in the comments section below.

Here are more than 80 additional articles and free downloadable books on A2L Consulting's site related to how juries think and behave:

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Tags: Trial Consultants, Jury Consulting, Trial Consulting, Trial Technology, Juries, Jury Selection, Judges, Depositions

Hurry Up and Wait - Using Silence in Depositions, Voir Dire and More

Posted by Laurie Kuslansky on Fri, Apr 4, 2014 @ 09:00 AM


silence deposition questions voir direLaurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

When are you most likely to get the best information? 

When you say nothing at all.

We frequently notice that — just as a deponent, as an afterthought, is about to drop good information — he or she is interrupted by an unaware, impatient questioner jumping to a new question.  It is in that magic moment when one is pensive and a truth is about to be revealed that somebody invariably steps on it and loses the moment. However, thinking (e.g., remembering facts and engaging in cognitive processing of the information, synthesizing it, reflecting on it and drawing inferences) takes time. 

Some refer to the critical pause after asking a question or after getting a response as “Golden Silence” (Miller Heiman Conceptual Selling®)[1], described as:

“… a technique where the salesperson asks a question and then allows three or four seconds of silence afterwards. Through its extensive research and experience, Miller Heiman learned that when faced with a Golden Silence, buyers will often open up and share an insight that helps both the buyer and the seller get a better grasp on the buyer's needs. Often, this leads to another question (based on the insight) followed by more silence and more insights. In this manner, salespeople are able to guide a meaningful, in-depth, and on-topic discussion that leads to a win-win where the customer's actual needs are met through a solution, not just through a product.”[2]

Others (particularly in educational research) call it “wait-time.” [3] Increasing the typical wait time of 1 second to 3-7 seconds (after asking a question or after receiving an answer before speaking again) has significant benefits: the length of responses can increase between 300% and 700% or more![4] In addition, instead of short phrases that rarely involve explanations of any complexity, pausing for 3 seconds or more tends to yield more elaborate, detailed responses.

So, the next time you ask a question or get an answer, the best thing you can do may very well be … nothing. Let silence do the heavy lifting.

Other articles related to best practices around voir dire, depositions and legal communications techniques from A2L include:

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[2] Ibid.

[3] Rowe, Mary Budd. "Wait Time: Slowing Down May Be a Way of Speeding Up." AMERICAN EDUCATOR 11 (Spring 1987): 38-43, 47. EJ 351 827 at http://www.sagepub.com/eis2study/articles/Budd%20Rowe.pdf

[4] Ibid.



Tags: Voir Dire, Jury Selection, Psychology, Expert Witness, Depositions, Cross Examination

Witness Preparation: The Most Important Part

Posted by Ryan Flax on Mon, Mar 24, 2014 @ 09:14 AM

witness preparation deposition trial consultantsRyan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

Winning at trial is largely about the juror’s gut reactions to you as an attorney and to your witnesses, as well as their gut reactions to the counterparts on the other side of the courtroom. Trial testimony and videoed deposition testimony are the lenses through which jurors (and the court) will get to know those individuals that know the most about your case. These situations are often the make or break moments during a litigation that either ensures your victory or defeat. So, you absolutely must prepare your witnesses for these situations by educating them on the process, what to expect, how to behave, and the goals of your client.

As litigators responsible for the task of witness preparation, we should all be familiar with the basic rules our deposition witnesses should follow:

  1. Always, always tell the truth
  2. Always understand the question before you answer it and say so if you don’t
  3. Never offer extra information, aka just answer the question asked
  4. Never guess/speculate – if you don’t know the answer, say so
  5. Always answer based on what you remember accurately - if you really cannot remember, say so
  6. Never testify about a document without reading it – all of it, take your time
  7. Always have a strategy
  8. Always comport yourself with decorum – remember, you’re testifying (on video) in a surrogate courtroom

When I prepare a witness for deposition I explain the things above and give them a routine for answering questions that they MUST adhere to on every question. That routine is: (1) listen carefully to the question asked; (2) identify whether you understand it; (3) formulate the complete answer to that specific question in your head; and (4) take a breath and then say the answer you just formulated. This accomplishes several things. It forces your witness to take his or her time. It forces the witness to think about each question. And, it creates a pattern for the deposition. All this will help your witness get through the process and should help you not suffer overwhelming damage during the deposition - you can't win a deposition, but you can definitely lose one.

What brought this to mind is the recently-released video footage of Justin Beiber being deposed in relation to a lawsuit brought against him by a paparazzi photographer (apparently, Mr. Beiber’s bodyguard roughed up the photographer, allegedly at Mr. Beiber’s order). Here’s the released video (courtesy of TMZ), which is about six and a half minutes of Mr. Beiber’s deposition(s), if you’re a litigator, watch it:

To say that this fellow will be an unsympathetic witness at trial seems to be a severe understatement. After watching the video above, I’d put him right up there with O.J. Simpson and Alec Baldwin’s character in Malice as a bad witness. He oozes arrogance, he’s belligerent with the deposing attorney, he’s not wearing a suit, his posture is terrible, his hair is ridiculous, he’s rude, he’s evasive, he’s a smart-aleck, and he is overstepping his witness role and actually objected to a question. If the jurors at this trial aren’t 12 year old girls, he’s going to lose.  Worst of all, now that this is public, anyone with a lukewarm legal gripe against this “kid” (he’s 20 years old) will be chomping at the bit to sue him.

Justin Beiber is either unteachable or was not properly prepared for this deposition (he might be unteachable). How would I have handled the witness preparation?

First, he should have been educated about what a deposition really is – it’s a surrogate for the courtroom and what you do and say during a deposition should portray you as you’d want the court or jury to know you.  I doubt Mr. Beiber understood what testifying under oath means, what perjury is, that the video of the deposition could be played in court as testimony or for impeachment purposes. He showed no understanding and less respect for the process and judicial system.

Mr. Beiber was not prepared to keep his cool – he was totally flustered by the mere mention of his on-again-off-again girlfriend Selena Gomez. I’d guess he wasn’t ready for the types of questions he was asked in the clip you saw above, but he should have been. It’s our duty as counsel to give our witnesses whatever mental/psychological tools they need to do a great job. 

Mr. Beiber should have been forced to practice tough deposition questions, should have been educated how to answer questions strategically, and should have been prepared so he didn’t look like a fool. Effective witness preparation should have been conducted. Like I said, though, maybe it’s him.

Let’s take a look at a clip from the deposition of a guy that might be a bit more intelligent than Mr. Beiber. Below we have a few minutes of the deposition Bill Gates gave the Department of Justice when defending Microsoft against antitrust charges:


Was Mr. Gates much better than Mr. Beiber? He may sound smarter, but still looked like a jerk (and will, forever, on video).  What Mr. Gates didn’t understand, but should have been educated on prior to being deposed, is that YOU CANNOT WIN A DEPOSITION. You can’t. You can only survive one and mitigate your damage.

To prepare a witness to do just that, survive and mitigate, they must know the eight rules I set out above. Moreover, they must have a strategy for answering deposition questions that serves to end the deposition more quickly rather than draw it out.

What do I mean by this?  Well, while Bill thought he was being smart and challenging the deposing attorney on question after question and pointing out ad nauseam why he thought the attorney was doing a bad job deposing him what was he accomplishing? Nothing, but extending his time in the witness chair.

What should Bill’s counsel have told him?  “Don’t try to win this deposition, that’s impossible.  Just answer the questions you’re asked truthfully and specifically. That will speed things along and any arguing or expanding or offering information you do will make this exercise longer and more painful.”

Let’s see another testimony and decorum failure to the tune of $10,000 and jail time.

OK, so technically this is not a deposition, but it’s entertaining and emphasizes a point.  You must treat a videotaped deposition like a court appearance and if you screw around during a court appearance you’re going to have a bad day.

Are all celebrities terrible deposition witnesses?  Let’s take a look at another (Rated R):

Here’s another guy that’s not prepared for his deposition. This is Dwayne Michael Carter, Jr., better known to consumers of hip hop music as “Li’l Wayne.” Here’s a guy that needs to be convinced to take this exercise seriously. He shows absolutely no respect for the deposing attorney or the process, and, hence, for the court.

Does Li’l Wayne seem truthful? Does he seem credible? Does he seem like someone you’d, as a potential juror, want to help or see fail?

Li’l Wayne might be a tough witness to help prepare because he doesn’t fear much: not the lawyers, not the press, not even jail time (the jail time he received may have even helped his street “cred” and career). So, what do you do to help him get through this experience? Perhaps it’s his time that he values, so appeal to his desire to have the deposition be as short as possible and teach him how to listen to and answer only the questions asked, clearly, straight forwardly, and briefly.

Finally, here’s an all-time favorite deposition video (Rated R). 

Had he been prepared for this video, this “gentleman” would have known this subject would come up and could have been ready to keep his emotions under control.  The middle of this tirade would have been a good time for his counsel to reach over and put his hand on him and say, “calm down and just answer the question asked.”  Even though representing counsel is not supposed to intervene during questioning, the deposing counsel would have probably preferred not to be sworn at by the witness.

Sometimes, when the deposition or court witness to be prepared is familiar to the attorney preparing him, such as a client or expert witness, it can be difficult for the attorney to fully prepare the witness alone. It’s often hard for an attorney in such a relationship to give the “tough love” needed. Sometimes, having had to fully imbibe the Kool-Aid for the case, the shortcomings of the witness may be glossed over by counsel. This is where engaging a 3rd party witness preparation consultant can help. 

Much of what I know about witness preparation I learned from the great Dave Malone.  He was a terrific guy and a terrific help when I prepared my own witnesses for deposition and then trial testimony.  Dave was taken too soon and too young and I’ll always remember him fondly.

Other A2L Consulting articles related to witness preparation, depositions and testimony:

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Tags: Jury Consulting, Litigation Consulting, Jury Consultants, Depositions, Witness Preparation

11 Traits of Great Courtroom Trial Technicians

Posted by Laurie Kuslansky on Tue, Jan 28, 2014 @ 01:00 PM


trial technician consultants hot seat new york los angeles edtx washingtonby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

A trial technician, also known as a hot-seat operator, has an incredibly challenging job. He or she needs to manage the minute-by-minute display of evidence at a trial. Often that means bringing up deposition video that has already been synchronized with the deposition transcript, or being able to bring up one of thousands or even millions of documents on a moment’s notice. In addition, a great hot-seat operator must understand what the litigator needs to prove at trial and what the pitfalls may be. He or she must almost feel like a “second skin” to the trial lawyer and must anticipate problems that will inevitably occur in the proof of the case.

Here are 11 characteristics of a great trial technician. 

  1. They anticipate problems and solve them before they happen. Typically, the trial technician is able to respond to requests from the litigator at trial almost before the requests are made.
  2. They exude calm and confidence, even when everyone around them is tense.
  3. They don’t just flash massive amounts of text on screen that no one can read. Instead, they know how and when to enlarge and highlight key portions. They have an instinctive feeling for what will be relevant to a jury.
  4. They are a source of solutions and better ways to achieve the presenter’s goals. It’s amazing how often a bright and qualified person ends up being a hindrance rather than a help to a litigator’s goals.
  5. They disagree when it’s in the best interest of the client. The excellent trial technician sees things not only in terms of the law but also in terms of how they will fare before a jury and is unafraid to state his or her opinion.
  6. They are quick on their feet and always on their toes. You only have to tell them what you want once and they get it.
  7. They’re flexible and make changes on short notice without a fuss. A great trial technician can make significant changes in a presentation without calling attention to himself or herself.
  8. They are highly professional and blend well into the trial team.
  9. A great trial technician is realistic about the limitations of the technology and the time it takes to perform certain tasks, so they can advise counsel to help prioritize for the best outcome.
  10. Even when the presenter fumbles, the great trial technician can keep going and help the lawyer stay on track.
  11. The great trial technician is an excellent communicator who can put even the novice technology user at ease.
Interested in learning more about how to find or best use trial technicians and trial technology in court? Download our third-edition e-book on the topic here, Trial Technicians & Trial Technology - A Litigator's Guide or call Alex Brown, Director of Operations, 800.337.9697, brown@a2lc.com.
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Tags: Trial Graphics, Trial Technicians, Litigation Graphics, Trial Presentation, Courtroom Presentations, Trial Technology, Presentation Graphics, Document Call-Outs, Depositions

8 Trial Technician-Related Tips for Midsized Law Firms

Posted by Ken Lopez on Wed, Jan 8, 2014 @ 08:34 AM


trial technician hot seat courtroom technologyby Ken Lopez
A2L Consulting

Part 2 of a four-part series on the rise of the midsize law firm in litigation. Parts 1,2,3,4.

A few months ago, Inside Counsel reported that midsize law firms with 201-500 lawyers had doubled the amount of litigation generating more than $1 million in legal fees over the past three years. We see this trend taking hold as well with more and more firms in this range utilizing our litigation consulting services.

In my last article directed at midsized law firms handling large-scale litigation, I discussed what litigators at those firms should know about litigation graphics. In this second of four articles, I want to cover one of my favorite topics -- the use of trial technicians, sometimes called hot-seaters. Many litigators at midsize law firm litigators have never used a trial technician, and it is not a decision that should be made without some background on the field.

It was not that long ago that we used laser discs and bar codes to display documents and deposition clips at trial. That old-style technology has evolved considerably, but it is still essentially the same.

storytelling persuasion courtroom litigation webinar

In a document-intensive case, it is important for the litigator to have the ability to make available, instantly, any one of millions of documents, demonstratives or deposition clips. Preparing a system to make this possible and running it at trial is the job of a trial technician. It is not easy, and it is generally not something one should do in-house in a big case.

Here are eight tips related to using trial technicians:

1) Download this book on selecting and using a trial technician: Like all of the litigation books on our site, it is free and full of useful information.

2) Understand the problem you are solving: In the modern courtroom, you can lose all your credibility by fumbling with technology. When you are trying a big case, you are the conductor, and the evidence is your orchestra. Among other things, it is your job to conduct and manage the work of the trial technician. Here is a good example of a trial technician at work: Making Good Use of Trial Director & Demonstratives in an Arbitration.

3) Price is an important consideration, but it is far from the most important: The skill of trial technicians varies as widely as the skill of musicians. If you have the wrong person running your show, you will look bad and your case will suffer. This article on trial technician pricing and cost goes into more detail.

4) Consider how you will use deposition video at trial: I like this article on our site for this purpose: 6 Tips for Effectively Using Video Depositions at Trial.

5) Practice, practice, practice: When the relationship and preparations are right, a trial technician appears to be able to anticipate the next moves of lead counsel. This is only possible with practice. Good practice for litigation looks like this and and the results of good practice for trial look like this

6) No, there is probably not a world-class trial technician in your town: There are only a handful of talented trial technicians around the country. Nine times out of ten, you will have to import them - even in Manhattan. One of the biggest mistakes I see is a trial team trying to avoid the small cost of a hotel room for a trial technician. After all, they are probably going to be spending plenty of late nights with you anyway.

7) If they are not using Trial Director, watch out: There is a reason that this software product has about 90 percent market share. It works, and if something goes wrong, you have a way to fix it.

8) Survey your courtroom: Good trial technicians insist that a survey of the courtroom be conducted early enough to plan for the best possible display of evidence.

Parts 1,2,3,4. 

Other articles on A2L's site related to trial technicians and hot-seaters:

Download Free Trial Technician Hiring Guidebook

Tags: Trial Technicians, Courtroom Presentations, Hot Seat Operators, Trial Technology, Practice, Depositions

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KenLopez resized 152

Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.

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Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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